144 Mo. App. 98 | Mo. Ct. App. | 1910
Plaintiff brought an action for divorce against defendant and in due course thereafter was granted a decree by the trial court. Within sixty days defendant sued out a writ of error.
The petition is fatally defective. Not alleging that the causé for divorce accrued in this State, it then fails to allege that plaintiff had resided in this State one whole year next before the filing of the petition. It does allege that he “has resided in the State of Missouri one whole year before the filing of this petition.” But that is not sufficient. He should have stated the year to be the year “next” before filing the petition.
It appears from plaintiff’s brief that after the decree and pending the issuance of the writ of error, the petition was lost. Defendant then undertook to have the trial court supply it and the court did so. But plaintiff contends it "was not properly done. The abstract of the record as presented by defendant, sets out the pleadings, consisting of the petition, answer and reply. It does not disclose that, the petition is a supplied copy. There is no counter-abstract and we accept that of defendant. We cannot allow the mere assertion of a party to take the place, and stand instead, of the requirement of our rules. If the abstract presented by defendant did not present the record properly, it was' plaintiff’s duty to present a counter-abstract. He has no right to merely deny and refer the court to the transcript.
. The judgment is reversed and cause remanded.
